Courts often decide that firing an employee without notice, especially for minor misconduct, can amount to wrongful dismissal. In these situations, employers are usually expected to use progressive discipline first.
Bear Creek Liquor Store Ltd. (Re), 2020 BCEST 143 sets out a simple four-step test employers must meet before firing someone without notice for minor misconduct:
- The employer established a reasonable standard of performance and communicated that standard to the employee;
- The employer provided the employee with sufficient time and a reasonable opportunity to meet the standard (may include training or tools);
- The employer warned the employee that failure to meet the standard was serious and would result in termination; and
- The employer can show that the employee still did not meet the standard.
In Bear Creek, an employee was terminated for alleged misconduct, including poor customer service, arguing with customers, swearing, misrepresenting her name, escalating situations, and refusing to work extra shifts. Management had never raised any of the listed concerns. The employee had not received any warnings or disciplinary measures prior to their termination. The Tribunal ruled in favour of the employee and dismissed the employer’s appeal.
In Czerniawski v. Corma Inc., 2021 ONSC 1514, an employee was terminated over a loud argument with a co-worker. There was no physical contact. The employee was asked to leave the workplace several times, but stayed. The police were called and escorted the employee out. The Court found that the employer failed to justify the dismissal without notice given that the misconduct was minor and there was a lack of progressive discipline.
In Phanlouvong v. Northfield Metal Products (1994) Ltd. et al, 2014 ONSC 6585, the court ruled in favour of the employee. There an employee punched a co-worker during an argument. The employee claimed the co-worker had made racist comments and tried to intimidate him before. On the day of the incident, the co-worker bumped into him with his elbows, leading to pushing and then a punch that caused a bloody nose. Despite the physical altercation, the court still found that the employer was unable to justify the employee’s termination without notice for failing to show that there were no reasonable alternatives to termination. The reasonable alternatives being progressive discipline.
The same principle applies in a unionized setting. In International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 555 v BWXT Canada Ltd., 2015 CanLII 85926 (SKLA), a unionized employee was terminated following a heated argument with a co-worker on a job site. The arbitrator found in favour of the employee because the employer’s decision to fire him was not justified. There was no progressive discipline, no performance plan, and the incident involved only one non-violent argument with no earlier rude behaviour.
If you believe that you have been wrongfully dismissed, please contact our firm for a free consultation. There is no fee unless we get you money.